Torture

Europe, 1450 to 1789: Encyclopedia of the Early Modern World
COPYRIGHT 2004 The Gale Group Inc.

TORTURE

TORTURE. Torture (in Latin: quaestio; in German: peinliche Frage, Folter, or Marter; in French: la question, gehene, gene ) was an integral part of medieval
and early modern criminal procedure. Because a voluminous body of law covered every stage of torture, the system is called judicial torture. During the early modern period torture gradually lost its importance, and it was finally abolished at the end of the period.

THE BACKGROUND OF JUDICIAL TORTURE

Judicial torture was no medieval or early modern invention. The Roman third-century lawyer Ulpian defined torture as "the torment and suffering of the body in order to elicit the truth." The actual jurisprudence of torture, however, only developed in connection with the twelfth-century "legal revolution," as the revival of Roman law at the newly founded universities of Northern Italy is often called. Before this, crimes were mostly prosecuted privately, with no public officials taking an active role in criminal investigations. The predominance of private prosecution came under threat as popes, kings, and princes increasingly centralized their political authority in the twelfth century. The process began in Northern Italy in the twelfth century and gradually spread to most other parts of Europe in the remaining centuries of the Middle Ages.

The inquisitorial procedure (inquisitio), as against the older accusatorial procedure (accusatio), was introduced to papal legislation as a means of controlling errant churchmen in the late twelfth century. In the inquisitorial procedure, the initiation of an action was entrusted to the court official, and the judge was actively involved in the investigation of the case. Inquisitorial procedure had been used in ancient Rome, and Charlemagne had also made use of it, but this type of procedure had fallen into disuse since the ninth century. In the thirteenth century, inquisitorial procedure was soon extended to the crime of heresy and other serious canon law crimes and soon spread to secular crimes as well. A parallel development (although not as yet thoroughly researched) was that serious crimes were categorized as exceptional (crimen exceptum), to which the normal rules of procedure did not apply.

The early medieval law of proof had left difficult cases to be decided by ordeal, oath, and judicial combat. Behind these archaic, "irrational" modes of proof lay the belief that God continuously intervened in the lives of the people and would let truth prevail in court as well. Leaving judicial problems for God to decide, however, ill suited the emerging conception of a rational, hierarchically organized judicial system. The result of the ordeal could not be challenged, nor could it be changed by the higher courts. The centralization of political power undermined the old European judicial systems, replacing lay judges with professional jurists. These professional judges were learned in Roman and canon law, distinct and alien from the system of proof based on ordeals, oaths, and combat. Many judges were probably familiar with formal logic and saw it as a basis for all legal decision making and law drafting. One of the most widespread forms of medieval legal scholarship became the so-called ordines iudiciarii, manuals of procedural law, in which both civil and criminal procedure, including the law of proof, were laid out in the minutest detail. The new procedure was based on learned law and written documents.

TORTURE AS PART OF THE STATUTORY THEORY OF PROOF

A new law of proof emerged, then, as part and parcel of these developments. The Roman canon law of proof drew its elements, like medieval Roman law in general, from the materials of Emperor Justinian's Corpus Juris Civilis (Corpus of Civil Law; also spelled Corpus Iuris Civilis), which had originated in the sixth century. In canon law, ordeals were expressly prohibited at the Fourth Lateran Council in 1215. The building blocks of Roman law were combined with those produced by the emerging canon law to build what has been called Romancanon law of proof, or the statutory or legal theory of proof. The theory then came to circulate as part of the European ius commune, ' common law', in the procedural law treatises of writers such as Albertus Gandinus (d. c. 1310) and William Durandus (c. 1237–1296). In contrast to the archaic system of oaths, ordeals, and combat, the new system assigned the decisions on evidence to human judges, not God, thus placing decisive emphasis on judicial torture. However, the change from one painful stage of criminal procedure to another—from ordeal to torture—may not have seemed as significant to ordinary people as it was to the theoretician.

Because the statutory theory of proof reached its maturity in the thirteenth century and remained virtually unchanged until the early modern period, it is convenient to describe the theory as it appears in sixteenth-century jurisprudence and legislation.
Among the many influential writers on criminal evidence embracing the statutory theory were the Italian Prosperus Farinaccius (1544–1618), the Dutchman Joost van Damhouder (1507–1581), and the German Benedict Carpzov (1595–1666). All these writers further elaborated and refined the theory of torture. The last important doctrinal defense of judicial torture was written by a Frenchman, Pierre François Muyart de Vouglans (1713–1791), in 1780.

Statutory theory of proof, as it was received from medieval literature in the works of Farinacius, Damhouder, Carpzov, and their colleagues, was based on the notions of full proof, half proof, and circumstantial evidence (indicia). Full proof could consist only of the statements of two eyewitnesses or the defendant's confession. Circumstantial evidence, no matter how plentiful, could only amount to partial proof, and combination of one eyewitness and circumstantial evidence did not constitute full proof. Without full proof, however, the accused could not be convicted of a capital crime.

Sacramental confession had gained significance in the twelfth-century canon law and had been made an annual obligation on all Christians at the Fourth Lateran Council of 1215. Because of its increased cultural significance, it is no wonder that confession had become "the queen of proofs"(reginaprobationum) in criminal procedure as well. The problem, however, was how to obtain full proof if no eyewitnesses were available. This is where judicial torture offered a solution. Judicial torture was never evidence in itself, but was a means of acquiring evidence in the form of confession.

THE THEORY OF JUDICIAL TORTURE

At the beginning of the early modern period, the ius commune theory of torture was basically the same as it had been in the works of Gandinus and Durandus. The basic rules were similar across Europe. The use of torture was confined to capital crimes, for which the death penalty or mutilation could apply. Torture was intended as the last resort in situations in which no other means of gathering evidence was available. If there was already full proof in the form of two eyewitnesses or voluntary confession, torture was not necessary. The accused was to be threatened with torture before it was actually applied, for instance, by showing him the instruments of torture. The investigating judge was to follow the accused to the torture chambers and interrogate him as he was being tortured, while a notary recorded the findings. Sometimes a doctor's presence was also required; no advocate, however, was allowed for the accused.

Torture was meant to establish whether the accused had committed the crime, the commission of which (corpus delicti) had already been established by other means. This legal safeguard did not, however, apply to witchcraft cases. They were regarded as crimina excepta, 'exceptional crimes', in that their "traces disappeared with the act" (facti transeuntis). The law excluded certain classes of people from liability to judicial torture. Pregnant women, children below the age of twelve or fourteen, and old people (if torture might put their lives at risk) could not be tortured. Noble persons, public officials of a certain standing, clergy, physicians, and doctors of law were exempt from torture in some parts of Europe. Torture could not take place on Sunday or other legal holidays.

The most important legal safeguard in restricting the use of torture had to do with the amount of circumstantial evidence required to initiate it. According to the law, half proof in the form of the testimony of one eyewitness or a sufficient amount of circumstantial evidence was necessary to initiate torture. Both in theory and in practice it was, however, largely left to the judge's discretion to determine when there was enough circumstantial evidence, although literature provided examples and guidelines. Compared to modern standards of proof necessary for conviction, the standard of evidence required for torture was often higher.

Other safeguards were provided to help material truth prevail as well. Contemporaries were well aware of the dangers that torture entailed from the point of view of finding out what had actually happened. Leading questioning was thus prohibited, and the confession extracted under torture was to be repeated in court within a certain time limit. Only the voluntary confession given thereafter, within twenty-four hours or so, served as proof, and not the confession given under torture. The practical significance of this safeguard was seriously undermined by the fact that the accused could be taken back to the torture chamber should he or she decide to recant the confession. Much of the literature recommended the practice of verifying the information obtained through torture, but many legal experts complained that courts paid too little attention to verification in practice. If the accused, nevertheless, managed to resist torture and did not confess, he or she had to be acquitted, at least until new incriminating evidence appeared.

The statutory theory of proof, together with judicial torture, was not only limited to legal literature but was incorporated into some of the major European legislative pieces of the early modern period, for example, the Constitutio Criminalis Carolina of imperial Germany (1532), the French Ordonnance Royale (1539) and Grande Ordonnance Criminelle (1670), and the Nueva Recopilación of Spain (1567). In some parts of Europe torture was used not only on the accused, but also on those against whom full eyewitness proof had already been produced. The idea was to secure confession, considered necessary for salvation, or to obtain evidence about possible accessories.

The legal literature was not greatly concerned with the form that judicial torture could take; this was largely a matter of local custom. In each case, the individual judge selected the method of torture, supposedly taking into consideration the seriousness of the charge. The most widespread torture
device was the strappado (corda, cola), "the queen of torments," in which the accused's hands were tied behind the back, and he or she was lifted up with a rope, sometimes with weights attached to the ankles. Or metallic devices, such as leg-braces, legscrews, and thumbscrews, were used to press the accused's limbs or fingers and to crush them. Other widely used methods included keeping the accused awake; being stretched on the rack; and inducing the sensation of drowning by wetting a rag stuffed into the accused's throat.

THE DECLINE OF TORTURE

In the seventeenth century, the system of judicial torture began to lose its practical significance, although it formally remained part of the law in most European countries until the late eighteenth and early nineteenth centuries. An important reason for its gradual disappearance was the erosion of its theoretical basis, the statutory theory of proof. In the sixteenth and seventeenth centuries, new forms of punishment were introduced as alternatives to death to cope with serious criminality, the most important being the galley, the workhouse, and the practice of exile and transportation. The new punishments called for more discretion in choice of punishment and sentencing. When the increased range of punishments and sentencing was combined with the different amounts of evidence available in practice, a revolution in the law of proof occurred. As John Langbein has shown, the "punishment upon suspicion" or "punishment for lying" (Verdachtstrafe, Lügenstrafe ) developed as a result of this. For lesser evidence, a lesser punishment now followed. Although the death penalty still required full proof, both executions and incidents of judicial torture decreased from the sixteenth and seventeenth centuries in many European regions.

Thus, Sweden, where the statutory theory of proof was only adopted in the seventeenth century, and in its already changed form, could always boast of not having accepted judicial torture. In practice, however, torture was not completely unknown there. The same can be said of Aragón, another state that did not formally allow the use of torture. The English experience demonstrates particularly clearly the close connection between torture and the law of proof. The English jury system began to develop before the reception of Roman law in Europe. It was thus the jury, not the Roman canon law of proof, that replaced the archaic modes of evidence in the Middle Ages in England. The jury developed considerable freedom in evaluating evidence and condemning on circumstantial evidence, making torture to extort confessions unnecessary. A regularized system of judicial torture thus never developed, and its use was limited to political cases. Another reason for England's rejection of torture was that, unlike the Continent, England's judicial system developed on the basis of unpaid lay judges, to whom it would have been dangerous to entrust a system of torture.

THE ABOLITION OF TORTURE

When Muyart de Vouglans wrote his treatise on criminal procedure in 1780, the medieval law of proof that had formed the basis of judicial torture had been eroded, and the philosophical and legislative attack on torture was already well under way. The best known critique of torture is Cesare Beccaria's (1738–1794) On Crimes and Punishments (1764), to which Muyart de Vouglans' work was in fact a response. Voltaire (1694–1778) joined Beccaria in fiercely condemning torture in some of his essays. According to the philosophes, torture could not secure correct judgments, since so much depended upon the ability of the accused to resist the physical pain involved. Torture was also wrong because it inflicted pain on people who had not been shown to deserve it. However, as Piero Fiorelli has demonstrated, these arguments were not the discoveries of the eighteenth-century philosophers, having been voiced by individual critics since the Middle Ages. Recent scholarship, especially the works of Fiorelli, Langbein, and Peters, has indeed shown that the historian of torture must look beyond the writings of the Enlightenment philosophers to understand why judicial torture was abolished.

European states abolished torture from their statutory law in the late eighteenth and early nineteenth centuries. Prussia was the first to abolish it in 1754; Denmark abolished it in 1770, Austria in 1776, France in 1780, and the Netherlands in 1798. Bavaria followed the trend in 1806 and Württemburg in 1809. In Spain the Napoleonic conquest put an end to the practice in 1808. Norway abolished it in 1819 and Portugal in 1826. The
Swiss cantons abolished torture in the first half of the nineteenth century. By the mid-nineteenth century, European legislators had thus harvested the fruits that the early modern revolution of proof, followed by Enlightenment philosophy, had produced. As Langbein and Peters observe, the final abolition of torture occurred gradually and in close connection with a general revision of criminal law. Legislative reforms took place partly simultaneously with, but in general slightly after, the Enlightenment philosophers' attack on judicial torture.

Torture

As media accounts and images of torture, trauma, disaster, and rape permeate our daily lives, it is difficult to ignore the impact such destruction wields on the social fabric in which we live. Individuals directly affected by this devastation, such as refugees, asylum seekers, IDPs (internally displaced people), and illegal immigrants, struggle to piece their lives back together after enduring unimaginable cruelty and violence. The cruel and violent acts witnessed and experienced by these individuals come in many forms, one of the most common being torture. Though the word torture is commonly used without restraint in everyday language, its use should be clearly differentiated from words for inhumane and degrading actions that may fail to match the true definition of “torture.”

The two most frequently cited definitions of torture are the World Medical Association’s (WMA) 1975 Declaration of Tokyo and the definition given by the 1984 United Nations Convention Against Torture.

The 1975 WMA Declaration defines torture as: “The deliberate, systematic, or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.” The 1984 United Nations Convention Against Torture expands upon this definition, distinguishing the legal and political components typically associated with torture:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Currently accepted definitions of torture have two essential elements: (1) Individuals are placed in captivity and subjected to extreme mental and physical suffering; and (2) the captors have a political goal or agenda. In this way, torture as a legal definition can be distinguished from criminal acts of violence.

The most common types of torture are summarized in Table 1. Torturers use these techniques to achieve several main goals. The most obvious intention of torture is breaking down an individual both physically and mentally (frequently for military or political purposes). Secondly, torturers seek to spread collective fear throughout a particular community or culture in which the victim lives. Finally, the torturer seeks to deeply humiliate the victim’s society and community. The goal of torture is essentially to render the victim nonhuman.

Table 1. Most Common Forms of Torture.

Beating, kicking, striking with objects

Beating to the head

Threats, humiliation

Being chained or tied to others

Exposure to heat, sun, strong light

Exposure to rain, body immersion, cold

Being placed in a sack, box, or very small space

Drowning, submersion of head in water

Suffocation

Overexertion, hard labor

Exposure to unhygienic conditions conducive to infections and other diseases

Blindfolding

Isolation, solitary confinement

Mock execution

Being made to witness others being tortured

Starvation

Sleep deprivation

Suspension from a rod by hands and/or feet

Rape, mutilation of genitalia

Sexual humiliation

Burning

Beating to the soles of feet with rods

Blows to the ears

Forced standing

Having urine or feces thrown at one or being made to throw urine or feces at other prisoners

(Nontherapeutic) administration of medicine

Insertion of needles under toenails and fingernails

Being forced to write confessions numerous times

Being shocked repeatedly by electrical instrument

One important act of torture, for example, that has only recently been recognized as such is rape, a frequently used torture practice during periods of conflict and genocide. A group with a particular agenda often executes systematic or wanton rape and sexual violence knowing that the long-term effects of this experience will be devastating to both the individual and his or her community. However, rape was only recognized globally as an act of torture after the international appraisal of violence that occurred in Bosnia-Herzegovina and Rwanda.

Knowledge of the types of torture described in Table 1 enables medical doctors, mental health professionals, and other health-care workers to assess the medical and psychological impact of torture and determine appropriate treatment. Until very recently, the psychological effects of torture have remained largely invisible. This is because of the combined effects of the difficulty of assessing mental symptoms in culturally diverse populations, the unsuccessful search by human-rights organizations for a unique “torture syndrome,” and the popular belief in some medical circles that extreme violence leads to the psychiatric diagnosis of post-traumatic stress disorder (PTSD). PTSD may be an appropriate diagnosis. However, this emphasis on PTSD has obscured the reality that the most common mental illness diagnosed in torture survivors is depression—often a serious and socially debilitating condition associated with serious medical consequences. While physical complaints in torture survivors are very common, usually these bodily complaints are the way people from various cultures express their pain and suffering.

Head injuries caused by beatings to the head with fists, clubs, or gun butts represent one of the most common physical effects of torture, leading to neuropsychological deficits that are rarely identified. Studies have shown that victims of all types of torture often experience persistent and pervasive sensory and memory deficits, cognitive impairment, chronic pain, and certain forms of motor impairment (as serious as paraplegia) as a result of their torture experience. Other more specific physical symptoms commonly reported include headaches, impaired hearing, gastrointestinal distress, and joint pain. Scars on the skin and bone dislocations and fractures are also typically observed.

Since sexual violence is a common form of torture, its effects, including increased risk for cervical cancer, human immunodeficiency virus (HIV) infection and AIDS, and a range of sexual dysfunction including impotence, must be identified and treated by medical professionals.

Physicians and health-care providers throughout the world are frequently confronted with the need to identify and treat the physical and psychological impact of extreme violence and torture. It is estimated, for example, that 60 percent of individuals who seek asylum in the United States have been tortured, as have many refugees and migrant workers. A history of torture is common in various groups that have resettled in the United States and other countries during recent decades—Cambodians, Vietnamese “boat people,” and former Vietnamese prisoners of war (POW) who arrived in the 1980s; Central Americans who immigrated in the 1980s and 1990s; and recent arrivals from sub-Saharan Africa, the Middle East, and eastern Europe. Many newcomers enter the United States not only to find economic opportunities but also to escape violence and political instability at home.

Despite routine exposure to the suffering of victims of human brutality, many health-care professionals tend to be apprehensive about confronting this reality in their clinical work. Globally, clinicians often avoid addressing torture-related symptoms of illness, believing they will not have the tools or the time to help torture survivors once they have elicited their history. As a result of this resistance, survivors and clinicians may conspire to create a relationship founded on the avoidance of all discussion of trauma.

The most effective care for torture survivors must begin with awareness. Persons who have been tortured generally do not want to be treated simply as torture survivors. Rather, they prefer a holistic approach that addresses their current reality in a culturally sensitive way. Many characteristics of the patient’s background provide clues that torture may have occurred. As health-care practitioners become more empowered to ask questions such as, “Have you experienced extreme violence or torture?,” it becomes easier to identify and treat the pathological symptoms of such trauma.

Torture survivors often do not recognize any relationship between the torture and current medical problems they may be experiencing. When asked about specific events, patients are usually grateful that the clinician is aware of what they have suffered, is interested in their history, and is encouraging them to talk about their story. Though clinicians often fear a patient’s reaction to questions about torture, patients rarely become emotionally overwhelmed or lose control when such questions are asked. Some torture survivors, especially victims of sexual violence, may have been hiding their history out of feelings of shame or fear of stigmatization, and thus be grateful to talk to someone who cares. Others may come from cultures in which physicians are not expected to be interested in patient’s personal history.

Many torture survivors recover from torture with the help of spiritual and religious practices, work, and altruistic activities that benefit themselves, their families, and their communities. These self-healing efforts need to be strongly supported by society and its health-care and mental health–care institutions. Human beings are incredibly resistant to even the most horrifying acts of human cruelty. While the majority of torture survivors recover without professional help, some do not. It has been shown that these individuals can greatly profit from proper medical and mental health care that will facilitate their return to a normal life.

A broad range of individual treatments exist that include primary health care, physical rehabilitation of torture-related disabilities, and psychological interventions aimed at eliminating traumatic memories, nightmares and chronic depression. Healing of torture survivors is also maximized when governments and the international community acknowledge the injustice they have suffered (e.g., the Truth and Reconciliation Commission in South Africa).

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 2002. Geneva, Switzerland: Office of the United Nations High Commissioner for Human Rights. http://www.unhchr.ch/html/menu2/6/cat/treaties/opcat.htm

torture

torture In a broad sense, torture might be regarded as any instance in which pain is inflicted by one human being on another, either for personal gratification or to demonstrate power. But historically torture has most often been defined more narrowly, as an aspect of legal systems or of state repression. The third century Roman jurist, Ulpian, noted that by torture ‘we are to understand the torment and suffering of the body in order to elicit the truth’, and much the same definition was offered by Article 1 of the Declaration against Torture adopted by the General Assembly of the United Nations in December 1975: ‘torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes of obtaining from him or a third person information or confession, punishing him for an act he committed, or intimidating him or other persons.’

Viewed in this way, torture has a long history. It was part of the judicial practice in a number of ancient cultures, notably among the Egyptians, Persians, Greeks, and Romans. Among the Romans it was reserved mainly for the investigation of treason or of criminal acts perpetrated by slaves or other persons of low status. What has been termed judicial torture probably fell into at least partial disuse after the fall of the Roman Empire, but it returned in Western and Central Europe when interest in Roman Law revived during the ‘judicial revolution’ of the twelfth century. More specifically, a papal ruling of 1215 which denied the validity of the ordeal as a means of establishing proof in criminal trials left those running Europe's legal systems with the problem of how to prove that suspects were guilty. Most states adopted the notion that a confession was the best form of proof, and adopted torture as a means of gaining confessions as well as information which might implicate other persons. Torture also became part of the judicial repertoire of the Inquisition. In theory, and frequently in practice, the application of torture was subjected to set rules aimed at avoiding the infliction of excessive suffering. More specifically, torture was only to be used against persons against whom there were already strong presumptions of guilt; it was not to be used against children, pregnant women, or the aged and infirm; examining judges were not meant to shape confessions through leading questions; and, of course, in the Christian West torturing was did not take place on Sundays. Preferred forms of judicial torture were the rack, the strappado (which involved binding the arms together behind the suspect's back, and then lifting him by a rope secured to his hands and slung over a beam), thumbscrews, and irons designed to crush the legs.

Cross-cultural studies reveal that torture was used in a number of extra-European states. In Japan, for example, torture was used from a very early date to extract confessions, and from the beginning of the Tokugawa period in the seventeenth century the Japanese seem to have used something very like the strappado. Some legal systems were opposed to judicial torture. Islamic law rejected the use of coercion to gain confession, although the authorities in the Ottoman Empire frequently ignored this.

The abolition of torture as a part of criminal trial process occurred over most of Europe in the second half of the eighteenth century, and has usually been regarded as a symbol of the arrival of Enlightenment values. More recent scholarship has suggested that the emergence of forms of secondary punishment which made the former stress on the confession redundant may also have been at play, along with other changes in criminal process. Yet it is certainly true that nineteenth-century liberals regarded the abolition of torture as one of the major achievements of European culture, something which distinguished their rational and progressive world from the brutal past. Thus the entry on torture in the famous eleventh edition of the Encyclopaedia Britannica, published in 1911, could congratulate itself that ‘the whole subject is now one of only historical interest as far as Europe is concerned’.

Sadly, twentieth-century developments shattered such complacency. Both Stalin's Russia and Hitler's Germany experienced a massive upsurge in torture, with the greater morality of the need to defend the Revolution or the State relegating other forms of morality to a secondary position. Since 1945 torture has been widely used in many parts of the world, notably in such South American States as Uruguay, Brazil, Argentina, and, under General Pinochet, in Chile, along with South Africa and Turkey. In such areas, torture has become one of the standard methods by which regimes have supported themselves, usually with a lack of control or supervision which would have been unthinkable in medieval Europe. The rack and the strappado have been rendered obsolete by electric shocks to the genitals, the use of electric cattle prods, regular beatings, cigarette burns, the insertion of police truncheons and similar objects in the anus or vulva, threat of rape or rape itself, and sophisticated psychological torments, applied to persons suspected of political deviance in a large number of states. Amnesty International has estimated that a third of the political regimes currently in existence use torture on a regular basis. The preface of that organization's 1973 Report on Torture commented that ‘torture has virtually become a worldwide phenomenon and that the torturing of citizens regardless of sex, age, or state of health in an effort to retain political power is a practice encouraged by some governments and tolerated by others in an increasingly large number of countries.’

As an historical phenomenon, torture, apart from those occasions when it has simply been treated as a symbol of past brutality, has been most studied in its legal aspects, and there has been little attempt to integrate it into the history of the body. Obviously, however, it does raise questions about how physical pain and suffering were regarded, and hence how one human being might regard the body of another. At least initially, medieval codes regulating torture held that persons who refused to confess under torture had removed the presumptions of guilt against them, and long before the eighteenth century European critics of judicial torture were arguing that torture was more likely to reveal individual tolerance of pain rather than encourage accurate confessions. Thus the English legal writer Sir John Fortescue, in De Laudibus Legum Anglie, a treatise probably composed around 1470, asked ‘who is so hardy that, having once passed through this atrocious torment, would not rather, though innocent, confess to every kind of crime, than submit again to the agony of torture?’ (The English common law, which Fortescue was praising, did not use torture as a part of normal criminal process.)

This theme was taken up in the mid eighteenth century, with the arrival of the Enlightenment. The most noted Enlightenment writer on crime and punishment was the Italian Cesare Beccaria, who published his influential Dei Delitti e delle Pene (On Crimes and Punishments) in 1764. Beccaria discussed torture at length, giving a number of reasons why it should be abolished, some humanitarian, others returning to a discussion of what torture was actually testing. Using contemporary notions about sensitivity to pain, Beccaria argued that ‘the impression of pain may become so great that, filling the entire sensory capacity of the tortured person, it leaves him free only to choose what for the moment is the shortest way to escape from pain … the sensitive innocent man will then confess himself guilty when he believes that, by so doing, he can put an end to his torment.’ Conversely, argued Beccaria, ‘robust scoundrels’, although guilty, would not crack under torture. This line of argument became axiomatic in Enlightenment critiques of judicial torture.

There is currently a growing corpus of studies of the effects of torture, both physical and psychological, upon those who have suffered it in the modern world, and such studies might offer perspectives on how a wider history of torture might be written. What is perhaps most needed, however, is some sort of insight into how torturers regarded those upon whom they were inflicting pain. It seems likely that in many cases the torturer would regard torture as a necessary evil, vital in either defending a regime or expediting a criminal process, or might regard the person being tortured as a creature so deviant as not to merit consideration as a fellow human. Yet it remains clear that the practice of torture does hold some clues, as yet largely uninvestigated, to past attitudes towards the human body.

torture

The Columbia Encyclopedia, 6th ed.

Copyright The Columbia University Press

torture, the intentional infliction of severe physical or mental pain or suffering in order to intimidate, coerce, obtain information or a confession, or punish. In international law, the term is usually further restricted to actions committed by persons acting in an official capacity.

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which came into force in 1987 and to which more than two thirds of the world's nations are parties, bans torture and other abusive treatment of any person, as well as forcibly transferring a person to a nation when there is reason to believe that the person will be tortured. Parties to the treaty must periodically report and answer questions on their compliance before the Committee against Torture in Geneva. The convention restates much of an earlier General Assembly declaration (1975), and the earlier Universal Declaration of Human Rights (1948) and International Covenant on Civil and Political Rights (1966; in force, 1976) also banned torture. In addition, agreements sponsored by regional international organizations also forbid the practice, as do the Geneva Conventions. Despite these international agreements, Amnesty International indicated (2007) that there were reports of the use of torture or other forms of abuse by security or police forces in 102 nations in 2006.

The utility of torture in obtaining useful information from individuals is a matter of debate, and the arguments on both sides rely on anecdotal evidence. Torture is most often justified, even by those who oppose its use generally, in situations where interrogators seek to obtain information from a suspect who has knowledge of an imminent and devastating attack. Whether a terror suspect who had knowledge of a
"ticking timebomb"
would divulge any useful information under torture likely depends on the psychology of the suspect. That tortured individuals divulge false information is known to be true, and an instance of this was reported to have contributed to the Bush administration's belief that Iraq had helped train militant Islamic terrorists. Studies also have shown that extreme stress can detrimentally affect memory, suggesting that torture, especially if prolonged, might in fact impair recall.

The United States, which regularly denounces the use of torture and abuse internationally in the State Dept.'s well-regarded Human Rights Reports, found itself the object of international criticism when, in the aftermath of the Sept. 11, 2001, terror attacks, Justice Dept. and other administration legal officials construed international strictures against torture narrowly so as to expand the harsh
"enhanced interrogation"
techniques that could be used, especially by the Central Intelligence Agency (CIA), when questioning suspected terrorists. Defense Dept. officials asserted (2003) that, as commander in chief, the president was not bound by the international commitments the United States had made concerning the use of torture and could approve any technique that would protect national security. U.S. government officials also argued that harsh treatment was not torture if an interrogator did not intend to torture a prisoner. Some have contended that such arguments directly contributed to reported abuses of terror suspects held at the Guantánamo Bay naval base and to notorious abuses of Iraqis at the Abu Ghraib prison. The United States also has transferred lesser terror suspects for detention and interrogation to countries where those suspects were citizens even when those countries were listed in State Dept. reports as using torture, although U.S. officials ostensibly have obtained guarantees against the use of torture in such cases.

U.S. officials subsequently (2004) issued guidelines that called torture abhorrent and retreated on many points from earlier memorandums, but it remained unclear to what degree Bush administration considered the CIA to be bound by U.S. law and international agreements. Revelations concerning Bush administration memorandums and practices led Senator John McCain, who had himself been tortured while a prisoner of war during the Vietnam War, to seek (2005) legislation banning cruel, inhuman, or degrading treatment of terror suspects in U.S. custody, no matter where they are held. It was reported in 2007 that in 2005 the Justice Dept. secretly approved the use of harsh interrogation tactics, including simulated drowning (
"waterboarding"
), by the CIA. In 2009 it was reported that that the treatment of at least one person held at Guantánamo Bay had met the legal definition of torture and that a secret 2007 International Committee of the Red Cross report had concluded that CIA treatment of some detainees constituted torture. In 2008 President Bush vetoed legislation that would have required the CIA to adhere to U.S. army interrogation standards, but in 2009 President Obama banned any methods that could be considered torture. A Senate Intelligence Committee report whose conclusions were publicly released in 2014 provided details on the use of torture by the CIA in the aftermath of the 2001 terrorist attacks, relying on the CIA's own documents, and asserted that the CIA's claims of the usefulness of brutal interrogation were contradicted by its own documents. The Senate report largely echoed a nonpartisan review of interrogation and detention practices after 2001 that was released in 2013.

See K. J. Greenberg and J. L. Dratel, ed., The Torture Papers: The Road to Abu Ghraib (2005); D. Rejali, Torture and Democracy (2007); J. Jaffer and A. Singh, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (2007); A. M. Dershowitz, Is There a Right To Remain Silent?: Coercive Interrogation and the Fifth Amendment After 9/11 (2008); M. Cohn, ed., The United States and Torture (2011); R. M. Palitto, ed., Torture and State Violence in the United States (2011).

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torture

torture. In his important work De laudibus legum Angliae, Chief Justice Fortescue (c.1385–1477/9) describes torture as being foreign to English law, which he praised in comparison with the civil law of the European continent. Certainly torture was a feature of the civil law system and was used to discover truth where an inquisitorial form of trial was used. However, although not used by the common law courts, it was used by the council when investigating offences and, particularly in the reign of Henry VIII and Elizabeth I, the use of torture, notably the use of the rack, was common. Torture was also occasionally used by the Court of Star Chamber. Although the common law itself did not use torture as a means of obtaining evidence, it did in practice torture those who refused to accept trial by jury under the peine forte et dure. Torture was permitted under Scottish law, but was abolished immediately after the Union by 7 Anne c. 21 s. 5 (1708).

Maureen Mulholland

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torture

tor·ture
/ ˈtôrchər/
•
n.
the action or practice of inflicting severe pain on someone as a punishment or to force them to do or say something, or for the pleasure of the person inflicting the pain. ∎
great physical or mental suffering or anxiety:
the torture I've gone through because of loving you so. ∎
a cause of such suffering or anxiety:
dances were absolute torture because I was so small.•
v. [tr.]
inflict severe pain on:
most of the victims had been brutally tortured. ∎
cause great mental suffering or anxiety to:
he was tortured by grief.DERIVATIVES:tor·tur·er
n.

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torture

torture Infliction of pain on a person to extract information, a confession or to indulge sadistic inclinations. It has been practised in many cultures. Until the 18th century in Europe, it was considered a legitimate means of extracting a legal confession to a crime. The 1949 Geneva Convention included a clause against torture. Despite this, the use of torture has continued. There has been increasing recognition of “psychological torture”, in which disorientation, fear and loss of sleep and self-respect are used instead of or in addition to the simple application of physical pain.

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